Free Order of Detention - District Court of Colorado - Colorado

Case 1:04-cr-00274-WDM

Document 43

Filed 10/20/2006

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No.: 04-cr-00274-WDM-01 UNITED STATES OF AMERICA Plaintiff, v. MICHELLE ANN ABEYTA Defendant.

ORDER OF DETENTION THIS MATTER came before the Court for a detention hearing on October 19, 2006. Present were the following: Phillip Brimmer, Assistant United States Attorney, Matthew Golla, counsel for the defendant, and the defendant. The Court heard testimony, reviewed the Pretrial Services' report and heard the argument of counsel. The Court has concluded, by a preponderance of the evidence, that no condition or combination of conditions of release will reasonably assure the appearance of the defendant, and has found that there is clear and convincing evidence that no condition or combination of conditions for release will reasonably assure the safety of the community, based upon the attached findings. IT IS HEREBY ORDERED that the defendant is committed to the custody of the Attorney General or their designated representative for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal; and IT IS FURTHER ORDERED that the defendant is to be afforded a reasonable opportunity to consult confidentially with defense counsel; and IT IS FURTHER ORDERED that upon order of this Court or on request of an attorney for the United States of America, the person in charge of the corrections facility shall deliver defendant to the United States Marshal for the purpose of an appearance in connection with this proceeding. DATED and ENTERED this 20th day of October, 2006. By the Court: s/ Gudrun J. Rice Gudrun J. Rice United States Magistrate Judge

Case 1:04-cr-00274-WDM

Document 43

Filed 10/20/2006

Page 2 of 2

United States v.Michelle Ann Abeyta Case Number 04-cr-00274

FINDINGS OF FACT, CONCLUSIONS OF LAW and REASONS FOR ORDER OF DETENTION This matter comes before the court on a Petition on violation of probation and/or supervised release and Warrant for Arrest of Probationer/Supervised Release. The Petition alleges that on December 10, 2004 the defendant was placed on supervision by District Judge Miller, with the conditions that the defendant participate in a program of testing and treatment for drug abuse, and that the defendant abstain from the use of alcohol and other intoxicants during the course of treatment, and that the defendant participate in a program of mental health treatment and that the defendant reside in a community corrections center for a period of six months. During a hearing on October 19, 2006, the defendant waived her right to a preliminary hearing under Rule 32.1 of the Federal Rules of Criminal Procedure, and did not present any information relating to the issue of detention. The defendant, through counsel, also advised the court that she was not contesting the government' request for detention. Based upon the facts s alleged in the Petition and in light of the defendant' waiver, the court finds that probable cause s exists to believe that the defendant violated one or more conditions of her release. Under Rule 32.1, the court " may release or detain the [defendant] under 18 U.S.C. § 3143(a) pending further proceedings. The burden of establishing that the person will not flee or pose a danger to any other person or to the community rests with the [defendant]." In making my findings of fact, I have taken judicial notice of the information set forth in the Petition on Supervised Release, and the entire court file. I further note the defendant' s decision not to contest detention at this time. Weighing all of the information presently before the court, I find that defendant has failed to sustain her burden under Rule 32.1. I specifically note that the Petition on Supervised Release indicates that the defendant possessed and used illegal controlled substances on or about December 17, 2004. It further appears that the defendant failed to participate in dual diagnosis treatment as directed by the probation officer on multiple dates beginning January 14, 2005 and continuing through February 2, 2006. It further appears that the defendant failed to abstain from the use of alcohol on November 18, 2005. The defendant was arrested by Jefferson County Sheriff' Department for possession of stolen mail and this matter s remains pending. The defendant, furthermore, appears in the Court on a Writ of Habeas Corpus ad Prosequendum. Given the defendant' apparent failure to comply with the conditions of supervised release s imposed by the District Court, I find there is no combination of conditions that I could set that would properly assure the defendant' appearance at further proceedings in this case. s